Employer risk in OS&H Act reform

Reforms to the Occupational Safety and Health Act, passed last week by parliament and due to become law by February next year, place corporations and individuals in breach of the act at risk of a significant increase in fines, and even the option of jail sentences for senior managers.

 The Government hopes the new laws, which bring Western Australia more in line with other States, will act as a deterrent to employers who don’t take OH&S seriously.

The maximum penalty will increase from $200,000 to $500,000 for corporations, and a maximum of $312,500 with up to two years imprisonment for individuals.

The reforms include some provisions regarding warnings that may strengthen the hand of employees and, potentially, unions.

The workers’ compensation reforms will make it more difficult for workers to sue their employers for common law damages.

However, the area of the new laws to have prompted a specific warning from some lawyers is the Provisional Improvement Notices (PIN) amendment.

The reforms mean that appropriately trained safety and health representatives are able to issue notices (PINs) where they believe an employer is contravening the act or regulations.

Phillips Fox partner Michael Bruce said the ability of a militant workforce to misuse PINs was a concern. 

“Those who ignore these notices do so at risk of later being held to have shown a flagrant disregard for safety – exposing the company and its directors to the onerous penalty provisions, “ Mr Bruce said.

“Whilst insurance is available to cover the legal defence costs of Worksafe prosecutions, that insurance does not cover fines, loss of reputation or, obviously, prison sentences for errant directors and officers.” 

But Unions WA secretary Stephanie Mayman said there was no evidence of misuse in other jurisdictions.

She said it would ensure better communication between employers and employees, but would require close monitoring and strict enforcement.

Overall, despite having sought more rigorous changes, Ms Mayman said unions supported the new laws, which she said were an important step forward for WA.

The current penalties imposed by the courts in WA were minimal, she said, and did not reflect community values in respect of the need to provide healthy and safe workplaces.